Executive Summary: Key Legal and Evidentiary Issues

• Dispute over whether the promising buyer’s withdrawal from accepted promises to purchase two immovables constituted an extra-contractual fault toward the listing broker, justifying payment of the broker’s commission.
• Assessment of the buyer’s sophistication, prior experience in real estate and childcare operations, and failure to read or properly understand the promises to purchase and amendments before lifting all conditions.
• Impact of timing: the buyer obtained information from the City of Montréal about the heritage (“patrimonial”) status and demolition delays for the duplex only after all conditions were waived, despite being advised earlier to verify this beforehand.
• Evaluation of whether the listing broker, Excel Immobilier (through its president, Mr. Triki), respected its duties of honesty, loyalty, competence and advice, or whether any lack of advice could excuse the buyer’s non-performance.
• Consideration of the buyer’s strategy to present two independent offers (without cross-conditions) to improve his bargaining position, and whether he could later rely on feasibility or zoning concerns to justify backing out.
• Determination of the appropriate quantum of damages: the broker’s contractual commission on the daycare property, less commission later earned on a subsequent sale, plus interest and legal costs.

Facts of the transaction

The dispute arises from a commercial real estate project in Montréal involving the planned acquisition of two neighboring buildings on Côte-Vertu for the development of a daycare. Excel Immobilier inc. (“Excel”), a real estate brokerage firm represented by its president, Mr. Abdelkader Triki, acted as listing broker for a property at 855 Côte-Vertu Ouest (“La Garderie”). The defendant, Mr. Lazhar Aissaoui, is an experienced school director and daycare operator who had already completed several real estate transactions and was known to give real estate advice in his community. He initially visited another property on rue Cartier with his own broker, which did not fit his needs for an 80-child daycare. Shortly thereafter, Mr. Triki informed him that Excel held a listing for La Garderie on Côte-Vertu, which he visited. Because La Garderie alone was too small for the intended daycare, discussions quickly turned to acquiring the neighboring duplex at 867 Côte-Vertu (“Le Duplex”), listed with another broker, with a view to combining the two properties. Mr. Aissaoui’s trusted construction contact, Mr. Abdelwahed Yahyaoui, participated in the second visit and provided informal advice about various development scenarios, including expanding La Garderie into the parking area or demolishing Le Duplex and redeveloping across both lots. The parties concluded that demolishing Le Duplex and expanding La Garderie over both parcels appeared more realistic.

Inspections, conditions and negotiations

At Mr. Aissaoui’s request, Excel prepared two separate promises to purchase on 9 January 2024: one for Le Duplex at $625,000 and one for La Garderie at $1,030,000. The buyer insisted that each offer be presented independently and not made conditional upon the other, to prevent the respective sellers from knowing about the parallel transaction and to enhance his negotiation leverage. The promise to purchase Le Duplex was accepted on 11 January 2024. The seller of La Garderie countered at $1,120,000, to which Mr. Aissaoui responded with $1,075,000; this counter-offer was accepted on 13 January 2024. The usual vendor documents for La Garderie were provided between 16 and 24 January 2024, and a combined inspection of both buildings was carried out on 25 January by Inspect 2000, an inspector chosen by the buyer. During the lengthy inspection visit, both the inspector and Mr. Yahyaoui identified deficiencies and stressed the need for further professional and municipal checks: an opinion from the City regarding demolition of Le Duplex, verification of building code compliance issues, and consultation with an architect to assess the project as a whole. Despite this, Mr. Aissaoui did not suspend the process or add new conditions. Instead, he instructed Mr. Triki to prepare an amendment requesting a $30,000 reduction in price for La Garderie, without any further conditions or references to feasibility, zoning, or demolition permits. When this was verbally refused, he sent a second amendment seeking a $20,000 reduction. Ultimately, on 13 February 2024, the parties signed a final modification reflecting a $10,000 price reduction and expressly confirming that all conditions were satisfied or waived. At that point, both promises to purchase had been accepted, and all conditions had been lifted.

Decision to withdraw and resulting dispute

Following the lifting of all conditions, Excel sent the usual documentation to the notary habitually used by Mr. Aissaoui, instructing her to prepare the deeds of sale. Only afterward, on 27 February 2024, did Mr. Aissaoui and Mr. Yahyaoui meet with representatives of the City of Montréal. This meeting had been recommended much earlier, at the time of inspection, but had not been pursued before the finalization of the promises to purchase. During the municipal meeting, Mr. Aissaoui learned that Le Duplex was classified as a heritage (“patrimonial”) building and that securing demolition permits for such a structure could take more than two years. That same day, he emailed Mr. Triki to announce that he no longer intended to proceed with the purchases of La Garderie and Le Duplex. In his email, he did not allege that Mr. Triki had failed in his professional duties; on the contrary, he praised the broker’s work and stated that he wanted to continue working with him in the future. He instead cited reasons that, according to the Court, were extraneous to the contractual documents and inconsistent with the fact that all conditions had already been lifted as of 13 February. Excel, faced with a buyer who refused to close, sent a formal demand through counsel seeking payment of the commission it would have earned under its brokerage contract with the promise seller of La Garderie. To mitigate its loss, Excel later completed a sale of La Garderie to a third party and earned a lower commission on that subsequent transaction.

Legal analysis on fault and broker’s rights

The Court examined whether the buyer’s conduct amounted to an extra-contractual fault (faute extracontractuelle) toward Excel, the listing broker, giving rise to a right to damages. Under Quebec legislation governing real estate brokerage, brokers must act with honesty, loyalty and competence and have a duty to advise their clients, while being bound by an obligation of means rather than a guarantee of result. The judge found that Excel, through Mr. Triki, had discharged these obligations: he accompanied the buyer, organized visits and inspection, prepared and transmitted the promises to purchase and amendments according to the buyer’s express strategy, and facilitated the usual pre-closing steps with the notary. The Court emphasized that a contractual fault by a promising buyer toward a promising seller can also constitute a civil fault toward the seller’s broker. The promises to purchase, their conditions and their eventual lifting are legal facts in the triangular relationship between buyer, seller and listing broker. The Court therefore focused on whether a reasonable person in Mr. Aissaoui’s position would have acted as he did, especially given his experience and the expert advice available to him. The judge found that Mr. Aissaoui was far from a novice: he had long experience in education and daycare operations, had done five or six real estate deals, and even gave real estate advice to members of his community. He instructed that the two offers be independent, in full awareness of the strategic risks, and then chose not to follow the repeated advice to verify feasibility with the City and consult an architect before finalizing his commitments. During the inspection, he was clearly informed of the need to make municipal and regulatory checks but nonetheless continued with the transaction, seeking only a price reduction rather than inserting new conditions or withdrawing. His later claim that he had not properly read the documents was rejected as not credible or, at best, as voluntary blindness. When he finally contacted the City, it was already too late: the promises to purchase were firm, and all conditions had been waived. The Court held that this sequence of decisions—culminating in a complete refusal to close once the heritage constraints became clear—was not the conduct of a prudent and diligent person in the circumstances. Consequently, the buyer’s failure to complete the purchase of La Garderie, after having lifted all conditions, constituted a fault causing financial loss to the broker, who lost the commission it was contractually entitled to receive from the seller.

Outcome and monetary consequences

On the evidence, the Court concluded that Excel had met its professional obligations and that the real cause of the collapsed transaction lay in the buyer’s own strategic choices and inexcusable errors. The argument that he was acting on behalf of his employer, the Institut d’enseignement Dar Al Iman, was rejected because all contractual documents were signed in his personal name (or for a company to be incorporated), no resolution authorized him to bind the institute, no correspondence indicated he was acting for it, and he did not even seek to bring the institute in as a third party. The judge therefore allowed Excel’s action in damages. The Court ordered the defendant, Mr. Lazhar Aissaoui, to pay Excel Immobilier inc. $26,490.25, representing the commission that would have been owed on the sale of La Garderie, less the commission later received on a subsequent sale, together with legal interest and the additional indemnity under article 1619 of the Civil Code of Québec running from 2 May 2024, plus judicial costs whose exact amount is not specified in the judgment. In practical terms, Excel Immobilier inc. is the successful party, and the total quantified principal award in its favor is $26,490.25, with additional interest and costs to be calculated separately.